In the same case it was further said:
In the age of Queen Elizabeth all restraints of trade, whatever they were, general or partial, were thought to be contrary to public policy, and, therefore, void. In time, however, it was found that a rule so rigid and far reaching must seriously interfere with transactions of every day occurrence. Traders could hardly venture to let their shops out of their own hands; the purchaser of a business was at the mercy of the seller; every apprentice was a possible rival. So the rule was relaxed. It was relaxed as far as the exigencies of trade for the time being required, gradually and not without difficulty, until it came to be recognized that all partial restraints might be good, though it was thought that general restraints, that is, restraints of general application, extending throughout the kingdom, must be bad. Why was the relaxation supposed to be thus limited? Simply because nobody imagined in those days that a general restraint could be reasonable, not because there was any inherent or essential distinction between the two cases. . . . . The true view at the present time, I think, is this: The public have an interest in every person's carrying on his trade freely; so has the individual. All interference with individual liberty of action in trading and all restraints of trade of themselves, if there is nothing more, are contrary to public policy and, therefore, void. That is the general rule. But there are exceptions. Restraints of trade and interference with individual liberty of action may be justified by the special circumstances of the particular case. It is a sufficient justification, and, indeed, it is the only justification, if the restriction is reasonable—reasonable, that is, in reference to the interests of the parties concerned, and reasonable with reference to the interests of the public, so framed and so guarded as to afford adequate protection to the party in whose favor it is imposed, while at the same time it is in no way injurious to the public. That, I think, is the fair result of all the authorities.[1]
Turning from this latest case in England to the later cases in the United States, we find the same trend and tendency in the opinions. Chief Justice Fuller, in a case in the Supreme Court, of the United States, lately said:
The decision in Mitchell vs. Reynolds (an old English case decided about 1710) is the foundation of the rule in relation to the invalidity
- ↑ Maxim-Nordenfeldt Guns and Ammunition Co. vs. Nordenfeldt (1894) App. Cas., 535.
